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QUARTARARO v. CATTERSON

January 25, 1996

MICHAEL QUARTARARO, Plaintiff, against JAMES M. CATTERSON, District Attorney of Suffolk County; MARK COHEN, Chief Assistant District Attorney; DEMETRI JONES, DONALD BYRNES, and MICHAEL MILLER, Assistant District Attorneys; TIMOTHY MAZZEI and WILLIAM KEAHON, former Assistant District Attorneys, as past and present employees of the Suffolk County District Attorney's Office; NEW YORK STATE DIVISION OF PAROLE, PAUL RUSSI, Chairman, MARTIN HORN, Executive Director of the New York State Department of Parole, WILLIAM K. ALTSCHULLER, Director of the Appeals Unit of the New York State Department of Parole, PATRICK HOY, Area Supervisor, PHILIP DELUCA, and JOHN CALLENDER, Senior Parole Officers; GERALD BURKE, THOMAS BIDDLE, MARIA RIVERA BUCHANAN, LEO LEVY, J. KEVIN MCNIFF, ANTHONY UMINA, BARBARA TREEN, DANIEL TAURIELLO, GEORGE KING, JULIAN ROSE, Parole Commissioners, and others, as employees of the Division of Parole; THE NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES, THOMAS A. COUGHLIN, Commissioner, JAMES F. RECORE, Director of Temporary Release Programs, BRIAN FISCHER, Superintendent of Queensboro Correctional Facility, ENOC ESTEVES, Deputy Superintendent, WILLIAM LESTER, Senior Counselor and Temporary Release Chairman, RUDOLPH F. JEFFREY, Correction Counselor, as employees of the Department of Correctional Services; THE NEW YORK STATE COMMISSION OF CORRECTION, WILLIAM G. MCMAHON, former Commissioner, Defendants.


The opinion of the court was delivered by: SEYBERT

 SEYBERT, District Judge:

 In the instant federal civil-rights action, plaintiff Michael Quartararo, an inmate of the New York State correctional system, brings suit against the defendants alleging that they violated his federal constitutional rights through their conduct in bringing about his removal from a work release program, and in causing his parole applications to be denied. Defendants New York State Division of Parole ["Division of Parole"], Russi, Horn, Altschuller, Hoy, DeLuca, Callender, Burke, Biddle, Buchanan, Levy, McNiff, Umina, Treen, Tauriello, King, and Rose, all current or former employees of the Division of Parole [hereinafter, the "Parole Defendants"], New York State Department of Correctional Services ["DOCS"], New York State Division of Correction ["Division of Correction"], Coughlin, Recore, Fischer, Esteves, Lester and Jeffrey, all current or former employees of DOCS [hereinafter, the "DOCS Defendants"], Catterson, Cohen, Miller and Jones, respectively the District Attorney of Suffolk County and assistant district attorneys employed by the Suffolk County District Attorney's Office at the time of the acts alleged in the plaintiff's Second Amended Complaint [hereinafter, the "District Attorney Defendants"], and Mazzei, Keahon and Byrnes, all former assistant district attorneys who were employed at one time by the Suffolk County District Attorney's Office [hereinafter, the "Former Prosecutor Defendants"], have moved to dismiss the Second Amended Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. The Parole Defendants, DOCS and the Division of Correction also move to dismiss this action for lack of subject matter jurisdiction, pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, and further move for judgment on the pleadings, pursuant to Fed. R. Civ. P. 12(c). In addition, the plaintiff moves pursuant to Fed. R. Civ. P. 15 for leave to file a Third Amended Complaint. For the reasons that follow, the defendants' applications are granted in part and denied in part, and the plaintiff is granted leave to file a Third Amended Complaint consistent with the Court's rulings herein. *fn1"

 FACTUAL BACKGROUND

 A. General Background

 On April 20, 1979, John Pius was brutally murdered in Smithtown, New York. John Pius's body was discovered in the woods behind Dogwood Elementary School, partially covered with leaves and with rocks in his mouth and throat. John Pius was thirteen years old at the time of his death.

 In December 1979, plaintiff Michael Quartararo, his brother Peter Quartararo, and Robert Brensic were indicted by the Suffolk County Grand Jury for the murder of John Pius. Plaintiff was fourteen years old at the time that he was indicted. Thereafter, in 1981, Thomas Ryan also was indicted for John Pius's murder. In 1981, plaintiff and his brother were tried and convicted and sentenced to prison terms of nine years to life.

 Thereafter, plaintiff petitioned the United States District Court for the Eastern District of New York for a writ of habeas corpus. By decision dated February 9, 1988, the petition for habeas corpus was granted on the basis of ineffective assistance of counsel, and plaintiff was granted a new trial. See Quartararo v. Fogg, 679 F. Supp. 212 (E.D.N.Y.), aff'd, 849 F.2d 1467 (2d Cir. 1988). The District Court also ordered plaintiff's release on bail pending trial. See id. Plaintiff remained on bail from February 1988 through February 1990.

 In February 1990, plaintiff was retried and reconvicted on the original 1979 indictment, and on May 30, 1990, was sentenced once again to a term of nine years to life. Upon being resentenced, plaintiff was returned to an upstate prison in DOCS custody to serve at a minimum, the remaining two years of his minimum sentence. Plaintiff appealed this reconviction, and his appeal was denied by the Appellate Division on May 31, 1994, see People v. Quartararo, 200 A.D.2d 160, 612 N.Y.S.2d 635 (App. Div. 2d Dep't 1994), and by the New York Court of Appeals on November 1, 1994. See People v. Quartararo, 84 N.Y.2d 939, 621 N.Y.S.2d 536, 645 N.E.2d 1236 (1994).

 B. Work Release

 Plaintiff continued to participate in DOCS' work release program until January 28, 1992. On or about January 28, 1992, the Parole and DOCS Defendants were notified by defendants Catterson, Cohen, Jones and other unknown District Attorney Defendants that plaintiff allegedly had threatened Barbara Pius, the mother of the slain child. See Pl.'s Second Am. Compl. P 72. According to plaintiff, this allegation was fabricated for the purpose of preventing his participation in the work release program and to block his release on parole. Upon being notified of this alleged threat, on January 29, 1992, plaintiff was confined to the Special Housing Unit ["SHU"] at Queensboro where he remained for a period of 14 days, until February 12, 1992. Plaintiff alleges that this confinement was punitive in nature, despite the fact that the Notice of Inmate Segregation that he received termed such confinement as "administrative." See id. P 73; id. Ex. E (Notice to Inmate of Administrative Segregation). During this 14-day period, plaintiff was confined for 23 hours per day, and was denied hot water, laundry services, personal property, and visitation privileges. Plaintiff also was denied access to a law library, the inmate grievance program, and congregate religious services. See id. P 73.

 On January 30, 1992, and again on February 4, 1992, plaintiff wrote to Superintendent Fischer, seeking an explanation for his confinement to the SHU and requesting his removal from the SHU. See id. Ex. F. Plaintiff alleges that during this same time frame, defendant DeLuca ordered Kay Russell, plaintiff's parole officer, to write a misbehavior report on plaintiff for violating temporary release rules. Russell refused to do so, however, because she had been prohibited from interviewing plaintiff, and prevented from investigating the nature and substance of the alleged threat to Barbara Pius.

 Plaintiff alleges that at some point between January 30, 1992 and February 4, 1992, defendants Fischer, Lester, Hoy, DeLuca and others conducted a secret hearing at Queensboro concerning plaintiff's continued participation in work release. Plaintiff was not given notice of this hearing, nor was he provided with an opportunity to appear or to present evidence or witnesses on his behalf. According to plaintiff, his participation in the work release program was summarily revoked after the secret hearing. Plaintiff was not provided with a detailed statement of reasons for his removal from the work release program.

 Plaintiff also alleges that the DOCS and Parole Defendants caused the inclusion, in plaintiff's parole and DOCS files, of false, misleading, inaccurate and highly prejudicial information and material, including secret reports, findings, photographs of John Pius, and other letters and documents from unverified sources. Plaintiff further alleges that he was denied access to his files.

 On February 12, 1992, plaintiff appeared before a Temporary Release Committee composed of defendants Lester, DeLuca and Jeffrey. Plaintiff alleges that he was not (a) given any notice of this hearing, (b) permitted to call witnesses or present evidence on his own behalf, or (c) permitted to review DOCS and parole investigative material. Subsequent to this hearing, plaintiff was advised that his work release was being revoked based on the fact that he had been denied parole for two years. According to the plaintiff, his removal from work release was motivated entirely by the desire of defendants Coughlin, Recore, Fischer, DeLuca and Jeffrey to avoid media embarrassment in view of the publicity that had been directed to plaintiff's participation in the work release program.

 C. 1992 Parole Hearing

 On February 11, 1992, plaintiff appeared before a parole board panel consisting of defendant Parole Commissioners Burke, Biddle and Buchanan [the "1992 Parole Hearing"]. According to the plaintiff, prior to the hearing, defendants Hoy and DeLuca improperly communicated to the Parole Board Commissioners false and misleading information, thereby prejudicing plaintiff and preventing his release on parole. On February 12, 1992, plaintiff was advised that his request for parole was denied for two years.

 Plaintiff contends that in reaching their decision, the defendant Parole Commissioners considered improper information including photographs of John Pius's body, an involuntary confession induced from Peter Quartararo, the report relating to plaintiff's threat to Mrs. Pius, numerous other letters and documents, and political pressure. Plaintiff further contends that the defendant Parole Commissioners improperly relied upon standards governing the treatment of adults when they should have relied on juvenile guidelines.

 On February 12, 1992, plaintiff was transferred to an upstate facility. Thereafter, plaintiff brought a proceeding pursuant to Article 78 of the New York Civil Practice Law and Rules before the New York State Supreme Court challenging his denial of parole [the "Article 78 proceeding"]. On January 31, 1994, a decision was rendered by the New York State Supreme Court in plaintiff's favor. See Quartararo v. New York State Div. of Parole, No. 45734-92, N.Y.L.J. Feb. 17, 1994, at 25 (N.Y. Sup. Ct. Jan. 31, 1994) (Pl.'s Second Am. Compl. Ex. O). The state court held that defendant Parole Commissioners Burke, Biddle and Buchanan misconstrued their roles and powers by establishing penal policy in attempting to resentence the plaintiff, rather than determining whether he should be released based on the statutory factors. Accordingly, the court granted plaintiff a de novo parole hearing, and ordered that reference to the suppressed confession of plaintiff's brother and the initial 1981 conviction not be considered at such hearing. The court further ordered that any press reports, documentation relating to plaintiff's removal from work release, and the photographs of John Pius be removed from plaintiff's file prior to the rehearing. See id.

 D. Events Subsequent to February 12, 1992

 On February 12, 1992, plaintiff was transferred from Queensboro to an upstate prison to continue serving his sentence. Thereafter, plaintiff's wife received two telephone calls from a woman who identified herself only as an employee at Queensboro. This woman stated that plaintiff was being treated improperly in that he was singled out for harsh treatment.

 The plaintiff's wife then hired a private investigator to locate Kay Russell, plaintiff's parole officer. Upon being located, Ms. Russell confirmed the existence of photographs of the body of John Pius in plaintiff's DOCS file, and stated that she spoke on several occasions with defendant DeLuca and had been ordered by DeLuca to make plaintiff's work release experience unbearable. Russell also confirmed that a secret hearing had taken place at Queensboro from which both she and the plaintiff were excluded. Finally, Russell expressed a fear of reprisal in the event she were to come forward with information concerning the plaintiff's treatment, stating that an unnamed parole official had warned her that if she were to testify or sign an affidavit favorable to the plaintiff, her retirement would be delayed.

 E. 1994 De Novo Parole Hearing

 On February 23, 1994, plaintiff appeared before defendant Parole Commissioners Treen and Tauriello for a de novo parole hearing [the "1994 De Novo Parole Hearing"]. Parole again was denied for two years, retroactive to February 1992, and the seriousness of plaintiff's offense was cited as the reason for the decision. See Pl.'s Second Am. Compl. Ex. P (Parole Board Decision Notice dated Feb. 23, 1994).

 The plaintiff alleges that the parole board failed to comply with the state court's order directing the de novo hearing. Specifically, plaintiff alleges that: (a) prior to and during the de novo hearing, Treen and Tauriello reviewed a transcript of the defective 1992 hearing; (b) the Parole Defendants failed to remove from plaintiff's parole file certain materials which the state court had ordered removed, including references to the suppressed confession of plaintiff's brother, plaintiff's defective 1981 conviction, and other information; and (c) defendants Treen and Tauriello, as well as the other named Parole Defendants, in denying parole to plaintiff at this de novo hearing, again were improperly influenced by public and political pressure.

 Plaintiff alleges that immediately following the de novo parole hearing, he was summoned to the basement corridor at Wallkill Correctional Facility, where he was told by Senior Parole Officer Donald Marley that his application for release on parole had been denied, because had it been granted, it would have appeared to be an admission that parole had been erroneously denied in 1992. Marley further told plaintiff that he had a "100% chance" of being paroled in March 1994 at his regularly scheduled parole hearing, provided that an out-of-state parole investigation had been completed by Massachusetts parole authorities.

 Plaintiff subsequently commenced an Article 78 proceeding in the Supreme Court of New York challenging the February 23, 1994 parole hearing.

 F. 1994 Regularly Scheduled Parole Hearing

 On or about March 7, 1994, the Massachusetts parole authorities approved and accepted the plaintiff's parole plan to which Marley had referred, and forwarded notice of said approval to the Parole Defendants in New York prior to the March 23, 1994 parole hearing.

 On March 23, 1994, plaintiff appeared before a parole panel consisting of defendants Parole Commissioners King and Rose for his regularly scheduled parole hearing [the "March 1994 Parole Board"]. Plaintiff was denied parole based upon the seriousness of the offense and his failure to admit participation in the murder of John Pius. See Pl.'s Second Am. Compl. Ex. Q (Parole Board Decision Notice dated March 23, 1994).

 According to the plaintiff, defendants King and Rose relied upon improper materials and information, as well as impermissible criteria, in denying plaintiff's parole application. Specifically, plaintiff alleges that although defendant King stated to plaintiff at the hearing that, because an appeal of his 1990 conviction was pending, plaintiff would not have to discuss his case, plaintiff nevertheless was questioned by King concerning the murder of John Pius. Plaintiff alleges that he was improperly pressured into not responding to these questions out of fear that anything he said might be misinterpreted or used against him at a later time.

 Finally, on March 24, 1994, shortly after receiving his parole denial notice, plaintiff once again was placed in a SHU, this time upon being labeled a "threat to security." Plaintiff, however, was not issued a misbehavior report in connection with this designation. Shortly thereafter, plaintiff was reclassified, and transferred to Woodbourne Correctional Facility, a facility of higher security classification.

 I. Standard of Review

 A district court should grant a motion to dismiss under Rule 12(b) of the Federal Rules of Civil Procedure only if "'it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.'" H.J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 249-50, 109 S. Ct. 2893, 2906, 106 L. Ed. 2d 195 (1989) (quoting Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S. Ct. 2229, 2232, 81 L. Ed. 2d 59 (1984)). In applying this standard, a district court must "read the facts alleged in the complaint in the light most favorable" to the plaintiff, and accept these allegations as true. Id. at 249, 109 S. Ct. at 2906; see Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S. Ct. 1683, 1686, 40 L. Ed. 2d 90 (1974); see also Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 113 S. Ct. 1160, 1163, 122 L. Ed. 2d 517 (1993) (citing Fed. R. Civ. P. 8(a)(2) to demonstrate liberal system of 'notice pleading' set up by the Federal Rules of Civil Procedure).

 The foregoing standards governing a court's evaluation of a Rule 12(b) motion to dismiss are to be contrasted with another type of Rule 12 motion that some of the defendants have invoked in this action, to wit, a motion for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c). In contrast to a motion to dismiss, a motion for judgment on the pleadings requires a court to consider not only the plaintiff's complaint, but also the defendant's answer, in assessing the plaintiff's articulation of his or her claim. *fn2" The defendants' invocation of Rule 12(c) is misplaced, however, because this procedural device only becomes operative "after the pleadings are closed . . . ." Fed. R. Civ. P. 12(c). Since none of the moving defendants has filed an answer in this action, Rule 12(c), by its terms, does not apply. Accordingly, to the extent that Rule 12(c) has been invoked, the defendants' applications will be recharacterized as having been brought pursuant to Rule 12(b).

 II. Eleventh Amendment Immunity

 Defendants DOCS, the Division of Parole, the New York State Commission of Correction, and the individual Parole Defendants have moved to dismiss the Second Amended Complaint to the extent that they have been sued in their official capacities, on the ground that the plaintiff's complaint is barred by the Eleventh Amendment.

 The Eleventh Amendment to the United States Constitution bars suit in federal court against a State, or one of its agencies or departments, unless the State has consented to be sued, or Congress has enacted legislation overriding the State's Eleventh Amendment immunity. *fn3" See Papasan v. Allain, 478 U.S. 265, 276, 106 S. Ct. 2932, 2939, 92 L. Ed. 2d 209 (1986); Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 98-100, 104 S. Ct. 900, 906-08, 79 L. Ed. 2d 67 (1984); Owens v. Coughlin, 561 F. Supp. 426, 428 (S.D.N.Y. 1983) (Eleventh Amendment requires dismissal of suit brought against DOCS). Although the Eleventh Amendment by its terms does not bar federal courts from hearing suits brought against a State by its own citizens, the Supreme Court "has consistently held that an unconsenting State is immune from suits brought in federal courts by her own citizens as well as by citizens of another State." Edelman v. Jordan, 415 U.S. 651, 662-63, 94 S. Ct. 1347, 1355, 39 L. Ed. 2d 662 (1974) (citations omitted). "This bar exists whether the relief sought is legal or equitable." Papasan, 478 U.S. at 276, 106 S. Ct. at 2939 (citing Pennhurst, 465 U.S. at 100-01, 104 S. Ct. at 907-09); see Santiago v. New York State Dep't of Correctional Servs., 945 F.2d 25, 32 (2d Cir. 1991) (Although plaintiff's "claim for an injunction against DOCS is not barred by the Eleventh Amendment's ban on retroactive damage actions, it too must be dismissed because it does not follow the requirement, established in Ex Parte Young, 209 U.S. 123, 28 S. Ct. 441, 52 L. Ed. 714 (1908), *fn4" that a plaintiff seeking prospective relief from the state must name as defendant a state official rather than the state or a state agency directly . . . ."), cert. denied, 502 U.S. 1094 (1992). Thus, because the State of New York has not consented to suit in federal court, to the extent that the complaint seeks relief against DOCS, the Division of Parole, and the New York State Commission of Correction, the complaint must be dismissed. *fn5"

 In addition, it is well established that "a suit seeking money damages from a State official in his official capacity is . . . barred by the Eleventh Amendment . . . . " Allah v. Commissioner of Dep't of Correctional Servs., 448 F. Supp. 1123, 1125 (N.D.N.Y. 1978) (citations omitted); see Scheuer v. Rhodes, 416 U.S. 232, 237, 94 S. Ct. 1683, 1687, 40 L. Ed. 2d 90 (1974); Edelman, 415 U.S. at 663, 94 S. Ct. at 1355-56. This result obtains because in an official-capacity suit against a state official, the state official is being sued merely as an agent of the State, and not in his or her own right. Therefore the State, and not the state official, is the real party at interest in the litigation, and it is upon the State treasury that damages would be imposed. See Pennhurst, 465 U.S. at 101-02, 104 S. Ct. at 908-09. Absent State consent to suit, or an act of Congress overriding the State's Eleventh Amendment immunity, such result is prohibited by the Eleventh Amendment. See Papasan, 478 U.S. at 276, 106 S. Ct. at 2939; Pennhurst, 465 U.S. at 98-100, 104 S. Ct. at 906-08.

 "On the other hand, a state official acting in his official capacity may be sued in a federal [court] to enjoin conduct that violates the federal Constitution, notwithstanding the Eleventh Amendment bar." Dube v. State University of New York, 900 F.2d 587, 595 (2d Cir. 1990) (emphasis added) (citations omitted), cert. denied, 501 U.S. 1211, 111 S. Ct. 2814, 115 L. Ed. 2d 986 (1991). Thus, to the extent that the plaintiff's complaint asserts claims for prospective injunctive relief against the individual Parole Defendants, the Eleventh Amendment does not deprive this Court of subject matter jurisdiction. See Green v. Mansour, 474 U.S. 64, 68, 106 S. Ct. 423, 426, 88 L. Ed. 2d 371 (1985); Pennhurst, 465 U.S. at 102-03, 104 S. Ct. at 909; Quern v. Jordan, 440 U.S. 332, 337, 99 S. Ct. 1139, 1143, 59 L. Ed. 2d 358 (1979); Ex Parte Young, 209 U.S. 123, 155-56, 28 S. Ct. 441, 452-53, 52 L. Ed. 714 (1908); Berman Enters. v. Jorling, 3 F.3d 602, 606 (2d Cir. 1993), cert. denied, 127 L. Ed. 2d 78, 114 S. Ct. 883 (1994).

 In the Second Amended Complaint, plaintiff specifically alleges that the following defendants are being sued only in their official capacities: Parole Commissioners Gerald Burke, Thomas Biddle, Maria Rivera Buchanan, Leo Levy, J. Kevin McNiff, Anthony Umina, Barbara Treen, Daniel Tauriello, George King and Julian Rose. In addition, the plaintiff specifically alleges that the remaining Parole Defendants are being sued in both their individual and official capacities. The defendants assert that to the extent that plaintiff's claims for punitive, compensatory and nominal damages are asserted against the individual defendants in their present or past official capacities, these claims must be dismissed.

 In his Memorandum of Law in opposition to the defendants' motions, the plaintiff concedes--quite appropriately in view of the foregoing legal principles--that he does not "seek money damages from any State official in his or her official capacity." Pl.'s Mem. of Law, at 5. In their reply brief, the defendants concede that they do not dispute that the individual defendants may be sued for prospective injunctive relief. See DOCS and Division of Parole Defs.' Reply Br., at 4 n.3. As a result of these concessions, the defendants' sole remaining contention regarding the plaintiff's joinder of state officials in their official capacities concerns the plaintiff's failure to particularize his request for injunctive relief. Insofar as no such requirement is imposed by the liberal pleading standard of Fed. R. Civ. P. 8(a)(2), and these matters can be better addressed upon discovery, the defendants' application with respect to this contention is denied, and the parties are directed to submit a stipulation reflecting the concessions set forth in their moving papers.

 Finally, the parties do not dispute that the Eleventh Amendment "provides no immunity for state officials sued in their personal capacities." Dube, 900 F.2d at 595 (emphasis added) (citing Farid v. Smith, 850 F.2d 917, 920-23 (2d Cir. 1988)); see Hafer v. Melo, 502 U.S. 21, 112 S. Ct. 358, 364-65, 116 L. Ed. 2d 301 (1991) (The Eleventh Amendment does not bar suits against state officials in their individual capacities.). Accordingly, to the extent that the Parole Defendants are sued in their personal capacities, the Eleventh Amendment imposes no barrier to the Court's assertion of jurisdiction over these claims.

 III. Defendants' Personal Involvement

 The Parole Defendants contend that the plaintiff's claims against defendants Coughlin, Russi, Recore, Horn, Altschuller, Levy, Umina and McNiff must be dismissed because none of these defendants was personally involved in the alleged violations of plaintiff's federal constitutional rights. Similar applications asserting a lack of personal involvement are brought by the District Attorney Defendants, and by the Former Prosecutor Defendants. In addition, the Parole Defendants assert that the plaintiff improperly seeks to hold defendants Coughlin, Russi, Recore, Fischer, Horn and Altschuller liable for damages under the doctrine of respondeat superior, which is unavailable in actions brought under 42 U.S.C. § 1983. See Monell v. Department of Social Servs., 436 U.S. 658, 691-92, 98 S. Ct. 2018, 2036, 56 L. Ed. 2d 611 (1978) (A defendant's personal involvement in the alleged constitutional violation is a prerequisite to the imposition of damages.).

 "It is well settled in this Circuit that personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of [monetary] damages under § 1983." Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (internal quotations and citations omitted). A defendant may be personally involved in a constitutional deprivation in one of the following ways:

 
(1) The defendant may have directly participated in the infraction.
 
(2) A supervisory official, after learning of the violation through a report or appeal, may have failed to remedy the wrong.
 
(3) A supervisory official may be liable because he or she created a policy or custom under which unconstitutional practices occurred, or allowed such a policy or custom to continue.
 
(4) [A] supervisory official may be personally liable if he or she was grossly negligent in managing subordinates who caused the unlawful condition or event.
 
(5) Supervisory liability may be imposed where an official demonstrates "gross negligence" or "deliberate indifference" to the constitutional rights of inmates by failing to act on information indicating that unconstitutional practices are taking place.

 Wright, 21 F.3d at 501; see Williams v. Smith, 781 F.2d 319, 323-24 (2d Cir. 1986) (citations omitted); McCann v. Coughlin, 698 F.2d 112, 125 (2d Cir. 1983) (holding that defendant Coughlin had actual or constructive notice of unconstitutional procedures, and therefore could not escape personal responsibility).

 A review of the Second Amended Complaint reveals it sufficiently to allege that each of the subject defendants, other than defendant Byrnes, either (i) directly participated in the deprivation of plaintiff's constitutional rights; (ii) exhibited "deliberate indifference" with respect to plaintiff's constitutional rights by failing to remedy the wrongful deprivation after having been notified of the deprivation; or (iii) both. At no point does the Second Amended Complaint assert liability with respect to a particular defendant on the basis of respondeat superior. As these concerns are comprehensively addressed in the plaintiff's memorandum of law, see Pl.'s Mem. of Law, at 20-24, the Court finds it unnecessary to repeat them at length in this Opinion.

 With respect to several of the defendants, the vulnerability of the Second Amended Complaint lies not in the complaint's failure to allege personal involvement, but rather in its failure to establish that such personal involvement amounts to a cause of action under § 1983 that is able to withstand the defendants' personal immunity defenses. These separate concerns will be addressed at length later in this Memorandum and Order. At this point, however, the Court simply rules that the Second Amended Complaint is not deficient as to any individual defendant, other than defendant Byrnes, on the ground that such defendant's personal involvement fails to be alleged adequately.

 As alluded above, the Court finds, however, that the plaintiff's Second Amended Complaint fails adequately to allege any personal involvement in a federal constitutional deprivation on the part of defendant Byrnes, one of the Former Prosecutor Defendants. In the Second Amended Complaint, Quartararo alleges that defendant Byrnes, in violation of New York law, denied him access to his parole file, and told him that no system exists to notify prospective parolees when information is added or removed from their files. See Pl.'s Second Am. Compl. P 133. This allegation fails to state a cause of action under 42 U.S.C. § 1983, because no federal rights are implicated by such conduct. *fn6" See 42 U.S.C. § 1983 (requiring that a plaintiff, under color of state law, be "deprived of any rights, privileges, or immunities secured by the Constitution and laws" of the United States); Eagleston v. Guido, 41 F.3d 865, 876 (2d Cir. 1994) (quoting Dwares v. City of New York, 985 F.2d 94, 98 (2d Cir. 1993)), cert. denied, 116 S. Ct. 53 (1995). Moreover, plaintiff's bald assertion that this allegation, in and of itself, implicates the Fifth and Fourteenth Amendments of the United States Constitution is unavailing. See Pl.'s Second Am. Compl. P 155. In this regard, the Second Amended Complaint does not specifically allege that Byrnes was part of a conspiracy to violate the plaintiff's federal constitutional rights. *fn7" Accordingly, because Byrnes is being sued solely in his individual capacity, see id. P 8, and the Court is unable to discern any pendent state claim for damages against him, see id. P 155, the Second Amended Complaint is hereby dismissed without prejudice against defendant Byrnes in its entirety.

 IV. Asserted Violation of Plaintiff's Constitutional Rights in connection with Confinement to Special Housing Unit [SHU]

 In Hewitt v. Helms, 459 U.S. 460, 103 S. Ct. 864, 74 L. Ed. 2d 675 (1983), the Supreme Court, upon finding a liberty interest in administrative confinement to have been created by the state as a result of the mandatory language and concomitant substantive predicates of the prison regulations at issue, see id., held that an inmate placed in administrative confinement is entitled to "some notice of the charges against him and an opportunity to present his views to the prison official charged with deciding whether to transfer him to administrative segregation." Id. at 476, 103 S. Ct. at 874. A comprehensive hearing, however, is not required; rather, "this due process requirement may be satisfied by 'an informal, nonadversary review of the information supporting [the inmate's] administrative confinement, including whatever statement [the inmate] wishe[s] to submit, within a reasonable time after confining him to administrative segregation.'" Gittens v. Lefevre, 891 F.2d 38, 41 (2d Cir. 1989) (quoting Hewitt, 459 U.S. at 472, 103 S. Ct. at 871).

 In the instant case, the notice of confinement provided to the plaintiff reads, in pertinent part, as follows:

 QUEENSBORO CORRECTIONAL FACILITY

 ADMINISTRATIVE SEGREGATION

 NOTICE TO INMATE

 SPECIAL HOUSING PROTECTIVE ADMISSION CONSIDERATION

 To: QUARTARARDO [sic], MICHAEL 86-B-0085 Date: 1/30/92

 The following information leads the staff of this facility to believe that protective admission to a special housing unit is necessary in your case.

 PAROLE HAS ADVISED FACILITY ADMINISTRATION THAT THERE IS REASON TO BELIEVE THAT BEHAVIOR ON INMATE'S PART MAY HAVE CONSTITUTED A THREAT TO THE COMMUNITY.

 PENDING REVIEW AND RECOMMENDATION BY PAROLE, PLACEMENT IN MINIMUM SECURITY UNIT IS NOT APPROPRIATE.

 If you wish to consent to voluntary protective admission to a special housing unit, please sign in the appropriate space on the reverse of this form.

 If you do not wish to consent to protective admission to a special housing unit, please provide the Interviewer with any statement you wish to make concerning the above information. You may also present immediately in writing any explanation or information which you want to be considered by the Superintendent in regard to this matter. Any statement you make may not be used against you in a criminal proceeding.

 The Superintendent will review the above information and any statement you wish to submit and make a determination concerning your assignment. You will be notified.

 Pl.'s Second Am. Compl. Ex. E. The plaintiff refused to execute the consent to confinement indicated in the form. The plaintiff contends that during the period of his confinement to the SHU, he was not notified of the precise nature of the charges against him, despite his repeated objections to confinement, and his inquiries concerning the reasons for his confinement.

 Although the above notice informed the plaintiff that he was a threat to the community, there is no indication therein of the nature of the charges against the plaintiff, namely, that he allegedly threatened John Pius's mother. In view of the deficiency in meaningful information concerning the charges against him as set forth in the notice, it is difficult to imagine that the plaintiff should have known, solely on the basis of the notice provided to him, of the nature of the charges that resulted in his confinement to the SHU. This absence of information takes on additional significance in view of the plaintiff's allegations--which the Court must accept as true for purposes of the instant motions to dismiss--that although the complaint labelled plaintiff's confinement as administrative segregation, his confinement was in fact punitive. With respect to the process due prisoners facing disciplinary charges, the Second Circuit Court of Appeals has stated:

 
An inmate who is facing prison disciplinary charges that could result in punitive segregation is entitled, at a minimum, to advance written notice of the charges against him and of the evidence available to the factfinder. He must be permitted to marshal the facts and prepare his defense. A written record of the proceedings must be kept. The inmate must be allowed to call witnesses and present documentary evidence in his defense.

 Patterson v. Coughlin, 761 F.2d 886, 890 (2d Cir. 1985), cert. denied, 474 U.S. 1100, 88 L. Ed. 2d 916, 106 S. Ct. 879 (1986). The inadequacy of notice, therefore, would have the effect of depriving the plaintiff of the ability to present a meaningful defense, thereby negating much, if not all, of the procedural protections that such notice purported to provide. See Wolff v. McDonnell, 418 U.S. 539, 558, 94 S. Ct. 2963, 2976, 41 L. Ed. 2d 935 (1974). Thus, assuming that the plaintiff possessed a liberty interest in not being confined to the SHU for a period of fourteen days, the plaintiff would succeed in stating an independent cause of action with respect to such confinement. *fn8" See Wright v. Smith, 21 F.3d 496, 499 (2d Cir. 1994); McCann v. Coughlin, 698 F.2d 112, 121 (2d Cir. 1983) (confinement to a SHU for seven days as a punishment triggers right to some due process protection, as does confinement to quarters for 14 days as a punishment); see also Walker v. Bates, 23 F.3d 652, 659 (2d Cir. 1994) (absent showing of good reason for denial of request to call witnesses at disciplinary hearing, fact that prisoner was successful on administrative appeal did not bar his claim for relief under § 1983), cert. denied, 132 L. Ed. 2d 852, 115 S. Ct. 2608 (1995); Patterson, 761 F.2d at 892 (placement of prisoner in SHU without prior hearing violates due process notwithstanding availability of post-deprivation remedy; this was so because question of fact existed as to whether the decision to place plaintiff in the SHU was made by officials with final authority over that decision, and therefore did not constitute a random and unauthorized act).

 Having addressed the deficiencies in the procedural safeguards afforded to the plaintiff, the Court observes that much has changed in procedural due process jurisprudence during the past several months. As recently as June of 1995, the law of the Second Circuit was that an inmate has a liberty interest in not being placed in a SHU, so as to trigger the procedural protections of due process. See Wright, 21 F.3d at 499 (citing Matiyn v. Henderson, 841 F.2d 31 (2d Cir.), cert. denied, 487 U.S. 1220, 108 S. Ct. 2876, 101 L. Ed. 2d 911 (1988)). On June 19, 1995, much of the jurisprudential landscape was leveled in light of the Supreme Court's decision in Sandin v. Conner, 132 L. Ed. 2d 418, 115 S. Ct. 2293 (1995).

 In Sandin, a prisoner, who was serving an indeterminate sentence of 30 years to life in a Hawaii prison, brought a civil-rights action against prison officials alleging that the defendants deprived him of procedural due process when an adjustment committee refused to allow him to present witnesses during a disciplinary hearing, and then sentenced him to disciplinary segregation in the Special Holding Unit, for a period of 30 days, for misconduct. See Sandin, 115 S. Ct. at 2296. The Supreme Court held that neither the state prison regulations nor the Due Process Clause itself afforded the plaintiff a protected liberty interest that would entitle him to the procedural protections set forth in Wolff v. McDonnell, 418 U.S. 539, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974). See Sandin, 115 S. Ct. at 2302.

 In developing its analysis, the Sandin Court first noted that, under Wolff, States may in certain circumstances create liberty interests which are protected by the Due Process Clause. See Sandin, 115 S. Ct. at 2300. These interests, however, generally will be "limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force, nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life. " Id. (citations omitted) (emphasis added). According to the Sandin Court, the methodology used in Hewitt v. Helms, 459 U.S. 460, 103 S. Ct. 864, 74 L. Ed. 2d 675 (1983), and later cases had impermissibly shifted the focus of the liberty interest inquiry from one based on the nature of the deprivation to one based on the language of a particular regulation. Under Hewitt's methodology, prison regulations had been examined solely to see whether mandatory language and substantive predicates created an enforceable expectation that the State would produce a particular outcome with respect to the conditions of the prisoner's confinement. See Sandin, 115 S. Ct. at 2298-99. This methodology, in turn, led courts, such as the Ninth Circuit Court of Appeals--which the Supreme Court overturned in Sandin--to find liberty interests to be created through the negative implications of mandatory language. See id. at 2300. In the view of the Sandin Court, this approach produced the undesirable effects of "creating disincentives for States to codify prison management procedures," and promoting "the involvement of federal courts in the day-to-day management of prisons . . . ." Id. at 2299.

 For the foregoing reasons, the Sandin Court regarded the approach of Hewitt, both in its formulation and in its consequences, to be at variance with an analysis designed to assess the "nature" of the deprivation worked upon the inmate. See id. at 2298 (citing Morrissey v. Brewer, 408 U.S. 471, 481, 92 S. Ct. 2593, 2600, 33 L. Ed. 2d 484 (1972); Board of Regents v. Roth, 408 U.S. 564, 571, 92 S. Ct. 2701, 2706, 33 L. Ed. 2d 548 (1972)). Focusing instead upon the nature of the 30 days' disciplinary confinement imposed upon the inmate in relation to his overall prison environment, the Sandin Court concluded that "Conner's discipline in segregated ...


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